Harassment and Discrimination


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Harassment and Discrimination Prevention Training for California Managers provides a comprehensive and interactive learning experience that satisfies California AB 1825 requirements but also offers practical, real-world strategies for today’s manager.

The state requires that all managers in California complete two hours of harassment training every other year and that new managers complete the training within six months of hire or promotion. Although managers outside of California are exempt from the requirement, it is highly recommended that any manager responsible for employees working in California also dedicate time to this learning opportunity to ensure there is a strong understanding of California’s broad protections for workers and steps that a business and a manager can take to reduce their exposure to risk in this area.

Log in for a basic understanding of California regulations as well as updates on:
• The affirmative obligation
• Personal liability of supervisors
• Updated disability protections
• New protected classes

Presented by Human Resources Account Manager, Rebecca McDonough, CA-SPHR.

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Harassment and Discrimination

  1. 1. Harassment &Discrimination Preventionfor Managers California AB 1825 Government Code 12950.1 Avoiding, Investigating, and Remedying Workplace Discrimination and HarassmentUpdated February 2010
  2. 2. WelcomeToday’s Presenter:Rebecca McDonough, SPHR-CAHuman Resources Account Manager for AlphaStaffrmcdonough@alphastaff.com(954) 938-1339
  3. 3. Welcome• This class will be 2 hours in length• A requirement of CA AB1825 is for the class to be interactive, so we will ask for your input and ideas, and we’ll ask review questions to participants periodically throughout the presentation• Feel free to ask your own questions throughout the training
  4. 4. Welcome• Be aware of noise levels in the room, particularly if you have a group listening via speaker phone. Feel free to mute your phones.• Please do not put your phone on hold during the presentation(unless it is muted) or the rest of the group may hear music/advertising that will disrupt the training.• Be prepared to un-mute your phones at times to answer questions or share your insights.
  5. 5. WelcomeThis is a safe environment for questions• All questions are welcome – there are no “dumb questions”• To ensure confidentiality, either share information without naming names or discuss a hypothetical situation• In our examples we refer to hypothetical scenarios or actual case law• You may not agree with everything that is discussed, but the objective of this training (and your responsibility) is compliance with the law
  6. 6. Introductions Is anyone on the call a manager working outside of California and managing California employees?
  7. 7. Legal DisclaimerThis training is intended to be informativeand efforts have been made to provideaccurate and timely information. However,the information provided is not intended toserve as legal advice, instead we willdiscuss good HR guidance.
  8. 8. Learning Objectives1. To assist California employers to change or to modify workplace behaviors that create or contribute to sexual harassment; and2. To develop, foster and encourage a set of values in supervisory employees who complete mandated training that will assist them to prevent and effectively respond to sexual harassment incidents.
  9. 9. AgendaPart 1 – The Law and the Regulatory AgenciesPart 2 – HarassmentPart 3 – DiscriminationPart 4 – The PolicyPart 5 - The Manager’s RolePart 6 – The Investigation Process
  10. 10. Part 1 The Law and theRegulatory Agencies
  11. 11. Regulatory AgenciesEEOC and DFEH Activities Include: • Receipt of claims • Investigation into claims • No Fault Resolution of claims (mediation for EEOC, pre and post accusation mediation by DFEH) • Litigation of claims • Issuance of Right-to-Sue Letters • Audits of employer practices • Training and outreach activities
  12. 12. Pop QuizAnyone know which laws govern equal employment opportunity?
  13. 13. Pop QuizAnyone know which laws govern equal employment opportunity?• Multiple federal laws like Title VII• State level mostly built into the FEHA• Government contractors have additional requirements including Executive Orders
  14. 14. Equal Employment Opportunity Commission (EEOC)Federal agency enforcing federal laws that prohibitharassment, discrimination, and retaliation.• Equal Pay Act of 1963• Title VII of the Civil Rights Act of 1964 • Pregnancy Discrimination Act (amended) • Lily Ledbetter Fair Pay Act of 2009• Age Discrimination in Employment Act of 1967• Americans with Disability Act of 1990• The Genetic Information Nondiscrimination Act of 2008
  15. 15. Dept of Fair Employment and Housing(DFEH)The Department of Fair Employment Housing (DFEH)is the state agency that enforces, coordinates, andprovides oversight for state equal employmentopportunity regulations. California laws prohibitharassment, discrimination, and retaliation. • Fair Employment and Housing Act • California Family Rights Act The DFEH is the largest state civil rights agency in the country. It was founded 6 years before the first Federal Equal Employment Opportunity law was passed.
  16. 16. FEHA vs. Title VII FEHA Title VII Strict liability for Negligence theory only. managers and supervisors. Affirmative obligation: Affirmative defense: • Employer must take all • Employer exercised reasonable steps to reasonable care; and, prevent harassment • Employee unreasonably failed to take advantage of opportunities to avoid harm.16
  17. 17. FEHA vs. Title VII FEHA Title VIIAll employers covered, even  ≥15 employeesthose employing only one personIncludes independentcontractors Persons providing services pursuant to a contract
  18. 18. 2011 DFEH Complaints Filed by Bases 18
  19. 19. Pop QuizWhy are the numbers for retaliation so high?
  20. 20. Pop QuizWhy are the numbers for retaliation so high? Separate charge added to any claim of harassment or discrimination, can win the harassment or discrimination claim but lose the retaliation charge
  21. 21. 2011 DFEH Accusations Issued 21
  22. 22. Part 2Harassment
  23. 23. Harassment DefinedTo promote advancement and productivity for the benefit of society it isunlawful for an employer or individual to harass another employee,applicant or contractor on the basis of race, religious creed, color, nationalorigin, ancestry, physical disability, mental disability, medical condition,genetic information, marital status, sex, gender, gender identity, genderexpression, age, or sexual orientation. (Gov. Code, §§12920, 12940, subd. (j).)Harassment can lead to:• Absenteeism• Poor Morale• Loss of Focus on Core Mission• Legal Consequences
  24. 24. Harassment Defined• Harassment does not require the exercise of official power. Anyone from an entry level clerk to the CEO can be a harasser.• Loss of tangible job benefits is NOT required.• Employee must prove that there was a hostile work environment, i.e., that the conduct interfered with a reasonable person’s ability to perform his or her job and that the employee was actually affected.Government Code section 12940, subdivision (j).Roby v. McKesson (2010) 47 Cal.4th 686, 706.State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th, 1026, 1040-1041.DFEH v. Lydaan Law Group (Cal. F.E.H.C. 2010) WL 4901731, p. 8.
  25. 25. Pop QuizWhich conversation points are personable and which are personal?• Any big plans for the weekend?• Would you like to try out my church on Sunday?• You’re looking dapper today.• I like the way the uniform pants fit you.Which conversation points seem like they are more likely tocontribute to claims of harassment?
  26. 26. Harassment is Considered Personal by the Courts“’Harassment consists of conduct outside the scope ofnecessary job performance, conduct presumablyengaged in for personal gratification, because ofmeanness or bigotry, or for other personal motives.’”Roby v. McKesson (2010) 47 Cal.4th 686, 707, citing Reno v. Baird (1998) 18 Cal.4th 640, 645-647.
  27. 27. Examples of Harassing BehaviorUnlawful harassment can include, but is not limited to:• Verbal harassment, e.g., epithets, derogatory comments or slurs.• Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement.• Visual harassment, e.g., derogatory posters, cartoons, or drawings;• Sexual harassment, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors.California Code of Regulations, section 7287.6, subdivision (b).
  28. 28. FEHA is not a Civility Code“[T]he FEHA is not a ‘civility code’ and is not designed to rid theworkplace of vulgarity.”Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.
  29. 29. Case in PointPlaintiffs, Latinos employed as “drivers” for We Try Harder RentalCar Company sue for harassment, alleging that their supervisor:• Routinely called only the Latino drivers “motherf***ers,” racial epithets, and other derogatory names.• Demeaned them on the basis of national origin, race and lack of English skills.• Conducted an investigation regarding a stolen stapler in which he identified only the Latino workers as suspects.• The jury found that the supervisor had committed all the alleged acts.• Is the supervisor liable for harassment?• Is We Try Harder liable for harassment?• Can the Court order the employer to ensure that such racial epithets are not used in the future?
  30. 30. Case in Point1. Yes. Government Code section 12940, subdivision (j).2. Yes. Government Code section 12940, subdivision (j).3. Yes. The First Amendment permits imposition of civil liability under the FEHA for past instances of pure speech that create a hostile work environment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 140-142.)NOTE: While a single use of a racial epithet, alone, does not create a hostile work environment, if a pattern of such use is established by the evidence, the trial court can enjoin such speech. (Id. at p. 147.)
  31. 31. Personal Strict and Vicarious Liability• Anyone found to have unlawfully harassed a co-worker, applicant or contractor is personally liable for the damages caused by the harassment.• If the harasser was a supervisor, the employer is strictly liable for those acts; the employer is vicariously liable for harassment by employees that the employer knew or should have known about.• In the case of sexual harassment, if the harasser is a third party, but the employer, its agents or supervisors knows of the conduct and fails to take immediate and appropriate action, the employer may be vicariously liable for those acts.Government Code section 12940, subdivision (j).
  32. 32. Harassment ProhibitedThere are two basic types of harassment:• Economic / Quid pro Quo• Environmental / Hostile Work Environment
  33. 33. Types of Harassment - Economic• Also Referred to as “Quid Pro Quo”• This form of harassment always involves a manager or supervisor abusing supervisory power.• Occurs when a manager’s harassment or retaliatory conduct toward an employee in a protected category results in a “tangible employment action” – TEA A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.
  34. 34. Types of Harassment - Economic• An employer is strictly liable for economic harassment committed by a manager because the actions of the manager are considered actions of the employer itself.
  35. 35. Types of Harassment - Environmental• Also known as “Hostile Work Environment”• Involves behavior which an employee finds offensive even though no tangible employment action results from the behavior.• Harassing conduct interferes with an employee’s work performance or creates an intimidating, hostile, or offensive working environment.
  36. 36. Types of Harassment - Environmental• Managers and supervisors, co-workers or persons who are not even employed by the employer can engage in environmental harassment. • Customers • Vendors • Members of the Public • Professional Relationships • For example, doctor/patient; attorney/client; landlord/tenant; teacher/student • Contractors • Temporary workers
  37. 37. Pop Quiz You are out with your employees after work grabbing a bite to eat and drinking a beer. The male employees start discussing a specific female coworker who wears clothing that is more revealing than most of her peers. There are several comments and jokes but even the females at the table appear to be laughing and the conversation moves on to another topic fairly quickly. Should you do anything? If so, what?
  38. 38. Types of Harassment - Environmental• Not all conduct aimed at a protected category is harassment.• The behavior must be: • Unwelcome • Offensive to the person complaining • Offensive to a “reasonable person” • Severe or Pervasive*
  39. 39. Invalid Defenses• Lack of intent• Everyone had a “right” to express their viewpoint• The absence of a complaint• Workplace vs. non-workplace conduct• We’re a family, It was just a joke!• Relevance of “victim’s off-duty conduct”• Office affairs, dating, and flirting
  40. 40. Dealing with Harassment• A manager or supervisor observes or receives complaints of unlawful harassment he or she must take immediate, appropriate action.• Know your policy and follow it• Separate the employees and diffuse the tension• Initiate an investigation• Communicate up your chain of command or out to HR
  41. 41. Part 3Discrimination
  42. 42. Definition of DiscriminationCalifornias Definition of Discrimination:• An employer cannot cause harm to an employee• Because of the person’s status in a protected class• Unless the decision is based on a bona fide occupational qualification
  43. 43. Definition of Discrimination:An employer cannot cause harm to an employee • Refuse to hire or employ • Refuse to select the person for training • Discharge from employment • Discriminate in compensation • Discriminate against the person in terms, conditions, or privileges
  44. 44. Definition of Discrimination:Because of the person’s status in a protected class • Age (40 and over) • Ancestry • Color • Creed • Denial of family and medical care leave • Disability (mental and physical) including pregnancy, HIV, AIDS • Marital status • Medical condition (cancer and genetic characteristics) • National origin • Race • Religion • Sex • Sexual orientation
  45. 45. Definition of Discrimination:Unless the decision is based on a bona fideoccupational qualification
  46. 46. Pop QuizWhat’s the difference between harassment and discrimination?
  47. 47. Pop QuizWhat’s the difference between harassment and discrimination?• Harassment does not require a tangible harm or adverse action• The company is liable for discrimination, the company and the harassers are liable for harassment• Discrimination is more likely to involve large groups of employees or be systemic in nature
  48. 48. Discrimination ProhibitedThere are 2 Forms of Discrimination:• Disparate Impact• Disparate Treatment
  49. 49. Discrimination ProhibitedDisparate Impact –• When a seemingly neutral practice has an unjustified adverse impact on members of a protected class• Applies to a protected group• May or may not be intentional• Systemic claims
  50. 50. Discrimination ProhibitedDisparate Treatment –• When a person is treated differently from others based on one or more of the protected factors• Applies to a protected individual vs. a group• The treatment is always intentional
  51. 51. FEHA DISABILITY DISCRIMINATION FEHA protects:  Applicants.  Employees.  Contractors.  From disability discrimination in:  Employment.  Training program leading to employment.  Compensation, terms, conditions, privileges of employment. (Gov. Code, § 12940, subd. (a).)
  52. 52. FEHA DISABILITY DEFINED• Physical or mental impairment that “limits” a major life activity;• Record of such an impairment; or• Regarded as having or having had such an impairment, or is regarded or treated as having an impairment that has no present disabling effect but might become a future disability.(Gov. Code, §§ 12926, subds. (i), (k) & (l), 12926.1, subds. (c) &(d).)Definitions of physical and mental disabilities are to be broadlyconstrued. (Gov. Code, § 12926.1, subd. (b).) 52
  53. 53. Pop Quiz An employee arrives to work and appears to be inebriated. Several employees bring the issue to your attention. You approach her and discover that her words are slurred, her eyes are red, and she smells of alcohol. As a manager you ask each of the witnesses to complete a Reasonable Suspicion Form and then you notify the employee that you will be driving her to the industrial clinic for a blood alcohol test. The employee tells you that she is a recovering alcoholic, she’s fallen off the wagon and she needs an accommodation to recover.Is she protected? What do you do?
  54. 54. WHAT IS NOT A DISABILITY? Current illegal drug use. History of criminal behavior. Compulsive gambling. Sexual behavior disorders or a history of sex offenses. Kleptomania. Pyromania. 54
  55. 55. LimitationFEHA requires that the physical or mental condition “limits” one or more major life activities, making “the achievement of the major life activity “difficult.” (Gov. Code, §§ 12926, subds. (j) & (l), 12926.1, subd. (d).) 55
  56. 56. Regarded as having disabilityFEHA still focuses on an employer’s perception. An individual is protected if s/he is “regarded or treated as” having or having had any physical or mental condition that (1) makes achievement of a major life activity difficult; or (2) has no present disabling effect but may become a future qualifying physical or mental condition. (Gov. Code, § 12926, subds. (j)(4)-(5) & (l)(4)-(5).)There is no durational limit to be a disability in FEHA. Note that FEHA provides that when the ADA’s definition of “disability” 56
  57. 57. ConstructionFEHA provides protections independent of ADA, containing broad definitions of what is considered a disability. (Gov. Code, § 12926.1.) 57
  58. 58. Pop Quiz A long time IT worker, who had not previously notified her employer that she was disabled, informs her supervisor that she suffers from carpal tunnel syndrome and needs an accommodation to continue working. Her supervisor is surprised since she had never reported this “disability” before. What should the supervisor do?Does the employee have a disability under the FEHA? 58
  59. 59. Keys to the FEHA’s Broad Disability ProtectionsInteractive Process: An employer is required to engage in a good faith, interactive process to determine an appropriate reasonable accommodation. Failing to do so constitutes an independent FEHA violation. 59
  60. 60. Reasonable Accommodation Discrimination Elements Employee’s actual or perceived condition qualifies as a physical or mental disability. Employee is capable of performing the essential functions of the job with or without a reasonable accommodation. Reasonable accommodation requirement is triggered. This is the notice requirement. Adverse action – Reasonable accommodation not provided by employer. 60
  61. 61. Defenses Essential Functions: An employer may, however, refuse to hire or may discharge an employee if, even with reasonable accommodations the employee, because of his or her disability, either is unable to perform the essential duties or cannot perform them without endangering the health or safety of the employee or others. (Gov. Code, § 12940, subd. (a)(1)-(2).) Undue Hardship: The FEHA provides that an employer must provide reasonable accommodation for the known physical or mental disability of an applicant or employee unless to do so would create undue hardship for the employer. 61
  62. 62. What Accommodations are Reasonable under the FEHA?• Job restructuring or re-allocation of duties.• Adjustment of work hours.• Providing tools, equipment, supplies, etc..• Modifying policies.• Leave of absence.• Reassignment to vacant position. If reassignment is needed, the employer must take affirmative steps to determine whether a position is available – the employer’s in the best position to know this information. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.) 62
  63. 63. Unreasonable Accommodations under the FEHA• Create a new job.• Move another employee.• Promote the disabled employee.• Violate another employee’s rights.• Reassign the disabled employee to a position that is not funded and not vacant. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.) 63
  64. 64. The FEHA’s Timely, Good Faith, Interactive Process Timely: Applies to both the employee and employer, neither can delay. Good Faith: Direct communication between the employer and employee, with a willingness to exchange essential information. Interactive: The employer consults with the employee to ascertain the precise job-related limitations, and how these limitations can be effectively overcome with a reasonable accommodation. 64
  65. 65. What Would Trigger the FEHA Interactive Process? An employee directly asking for an accommodation (either orally or in writing). The employee’s representative asking on the employee’s behalf (such as the employee’s doctor, spouse or union rep.) Employee states he’s having difficulty getting to work on time because of the medical treatment of his health condition. Employee’s spouse calls and tells employer that employee has had a medical emergency because of his cancer and needs to take five weeks off. Employee’s doctor sends a letter stating that employee can’t lift more than 50 pounds. 65
  66. 66. What Would Not Trigger the FEHA Interactive Process? Employee mentions disability but does not inform employer of any specific limitation (and none is readily apparent to employer). Employee requests an accommodation but doesn’t mention any disability (and employer has no reason to know of the disability) . Employee mentions inability to perform specific task, but does not request an accommodation or mention that inability is tied to a disability. Employee makes threats of violence against a supervisor or co- worker. 66
  67. 67. Common Employer Reasonable Accommodation Mistakes• Assuming worker’s compensation is the exclusive remedy for work related injuries. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.)• Following a “100%” healthy rule before an employee can return to work.• Failure to consider vacant positions. 67
  68. 68. Common Employer Reasonable Accommodation Mistakes• Claiming that an employee cannot perform the essential functions of the job when, in fact, the employee was performing the job either with or without an accommodation.• Refusal to grant a reasonable accommodation due to an inflexible reliance on company rules. 68
  69. 69. Common Employer Reasonable Accommodation Mistakes• Asserting an essential functions defense based on a job description that does not accurately reflect the employee’s actual job.• Asserting an essential functions defense without considering the ease of certain accommodations, such as assistance from co-workers or tools. 69
  70. 70. Pop Quiz An employee of a Fortune 500 company notifies her supervisor that she suffers from a slipped disk in her back, and requests that she be provided a special chair to allow her to sit without pain. The employer refuses to provide the chair she requests, but tells her she can look through the company’s storage and take any chair she finds. Would this be considered a reasonable accommodation?Has the employer discriminated based on disability? 70
  71. 71. Definition of Retaliation
  72. 72. Definition of Retalition
  73. 73. Retaliation is Prohibited• Against anyone who seeks advice from the California Department of Fair Employment and Housing• Who makes a complaint about discrimination or harassment, or• Who participates or assists in seeking advice, filing a complaint, or any investigation of such a complaint
  74. 74. Part 4The Manager’s Role
  75. 75. Preventing Harassment1. Understand your policy2. Disseminate the policy3. Follow the policy4. Ensure that your employees comply with the policy5. Intervene if inappropriate conduct occurs, even if no one complains
  76. 76. When you receive a complaint 1. Listen actively  Allow complainant to tell her story. 2. Keep parties separate  Never force a confrontation between complaining employee and alleged harasser. 3. Be candid with the parties and witnesses:  Complaints and interviews not confidential.76
  77. 77. Review of Your Policy
  78. 78. Zero Tolerance Policy Eliminates room for error Policy State Law Federal Law
  79. 79. Contact AlphaStaff For Help • Remember that AlphaStaff is always here for you • Call your HR Account Manager or Human Resources Department for help
  80. 80. Part 4The Investigation Process
  81. 81. The Importance of the Investigation
  82. 82. The Good Faith Defense• CA Supreme Court has held that when an employer terminates an employee based on a good faith determination that employee misconduct occurred, there is no wrongful discharge claim, even if the employee later proves no misconduct actually occurred• Cotran v. Rollins Hudig Hall Int., Inc.
  83. 83. The Good Faith Defense• The DFEH determines sufficiency and reasonableness of the investigation by the following factors:• The investigator was neutral and had been trained• The investigator interviewed the alleged harasser and the victim as well as all pertinent witnesses• The investigator reviewed all relevant documents• The investigator documented the investigation and prepared a written report• The investigation communicated the findings in a confidential manner to the interested parties
  84. 84. Conducting an Investigation• Explain the limited meaning of confidentiality • Only those with a business need to know will be informed • It is not possible to maintain true confidentiality and still comply with the company’s legal obligation to investigate and take corrective action• Always request a written statement from each person interviewed• Critical to have a written statement from the accuser to ensure all claims are investigated• Use sample questions from the EEOC where possible to ensure the investigation is defensible
  85. 85. Purpose Of An InvestigationGather the most facts possible so that managementcan make a credible, complete, and efficientdetermination as to:1. what happened;2. how it should be resolved; and,3. what can be done to prevent future problems.
  86. 86. Group DiscussionIs a full investigation always necessary?How do you know when to conduct an fullinvestigation and when a less-formal approach iswarranted?
  87. 87. Remedies forHarassment
  88. 88. RemediesLost salary or wages.Transfer.Purge of personnel file.Emotional distress.Punitive damages.Court-ordered policy changes and training. 88
  89. 89. Thank you for your participation! Please relay any questions toRebecca McDonough, SPHR-CA rmcdonough@alphastaff.com 954-938-1339
  90. 90. Harassment and Discrimination Prevention for Supervisors A course designed to assist California employers in changing or modifying workplace behaviors that create or contribute to “sexual harassment” as that term is defined in California and federal law and to develop, foster, and encourage a set of values in supervisory employees who complete mandated training that will assist them in preventing and effectively responding to incidents of sexual harassment. I hereby acknowledge completion of the course, Harassment and Discrimination Prevention for Supervisors, conducted on: beginning at: X ending at: Signature Date by: Rebecca McDonough, SPHR-CAUpdated February 2010